[farva25]

Got a couple questions. First has anyone ever charged assault and battery(Comm. V. Jacobsen) (265 sec 13A I believe) in order to trigger warrantless arrest authority for 209A when there is no order in effect and the assault doesn't fit "abuse" under 209A but is domestic. Now correct me if I'm wrong but simple A&B is not arrestable unless it is in presence and amounts to breach of peace or unless it is a domestic A&B. Now how would you charge? Would the arrest be for A&B or 209A? Also lets say you get called to a domestic..."Bobby" beats up "Betty". When you arrive Bobby has left scene. Betty has obvious injuries. Betty gives you fake name of suspect. You know that it's really Bobby because Bobby and Betty have a past together. Now Betty won't sign statement saying Bobby did it and keeps giving false name. However you get a signed statement from friend of Betty's that says Betty told her Bobby did it. Do you have probable cause to arrest Bobby for 209A? I say yes but others say no. Looking for opinions.

 

[Gil]

I would say "10-6, 904" (aka unit clear, no report required)

Seriously... do some investigating, find Bobby, talk to any witnesses etc... and lock him up for A&B domestic if you have pc. But I can guarantee that it will get tossed in court.

As for the 209A, if there is no order in effect you can't arrest for violation of an order that does not exist.

When in doubt...summons (for the A&B not the 209A)

http://www.mass.gov/legis/laws/mgl/gl-209a-toc.htm

http://www.mass.gov/legis/laws/mgl/265-13a.htm

 

[farva25]

I would say "10-6, 904" (aka unit clear, no report required)

Seriously... do some investigating, find Bobby, talk to any witnesses etc... and lock him up for A&B domestic if you have pc. But I can guarantee that it will get tossed in court.

As for the 209A, if there is no order in effect you can't arrest for violation of an order that does not exist.

When in doubt...summons

Maybe I'm confused but I thought if there is no 209A order in effect arrest is the "preferred" response. Hence you could charge 209A.

 

[Gil]

Maybe I'm confused but I thought if there is no 209A order in effect arrest is the "preferred" response. Hence you could charge 209A.

Based on your question above, the correct charge would be Ch. 265 Sec.13A Domestic A&B. You can only arrest for violation of 209A if there is an order in effect issued by a judge.

The case you refer to the suspect was not charged with Ch. 265 Sec. 13A but Ch. 275 Sec. 2 (threat to commit a crime). In that case there was no 209A order in effect and that is why the suspect was not charged with violating said order.

I will have to read the case a little more but just browsing it quickly it looks like the substantive dating relationship was questionable.

http://www.commonwealthpolice.net/case/commJ/Commonwealth%20v.%20Jacobsen,%20419%20Mass.%20269%20(1995).htm

 

[farva25]

Based on your question above, the correct charge would be Ch. 265 Sec.13A Domestic A&B. You can only arrest for violation of 209A if there is an order in effect issued by a judge.

The case you refer to the suspect was not charged with Ch. 265 Sec. 13A but Ch. 275 Sec. 2 (threat to commit a crime). In that case there was no 209A order in effect and that is why the suspect was not charged with violating said order.

I will have to read the case a little more but just browsing it quickly it looks like the substantive dating relationship was questionable.

http://www.commonwealthpolice.net/case/commJ/Commonwealth%20v.%20Jacobsen,%20419%20Mass.%20269%20(1995).htm

Thanks for the response Gil,

In a Domestic Violence book I have it says when there is no order in effect arrest is the preferred response for 209A. In that section of the book it doesn't reference 265 13A whatsoever. Maybe thats where I am getting confused. Another handout I have says when level of abuse for 209a is questionable and no order is in effect, charge 265 s13A to trigger warrantless arrest for 209A. It also references Comm. V. Jacobsen in that section.

 

[MVS]

I would say "10-6, 904" (aka unit clear, no report required)

Seriously... do some investigating, find Bobby, talk to any witnesses etc... and lock him up for A&B domestic if you have pc. But I can guarantee that it will get tossed in court.

http://www.mass.gov/legis/laws/mgl/gl-209a-toc.htm

http://www.mass.gov/legis/laws/mgl/265-13a.htm

Exactly!! Lock his ass up and let the court deal with it. It's much better and its a CYA response. If you have just a hair of PC, shooook! Lock him up!. Play it safe!

 

[94c]

Correct me if I'm wrong but Jacobsen was a domestic situation where an arrest was made for Threats. And since threats have a specific way of being handled by the courts, then an arrest could not be made unless it rose to the level of an assault.

Chapter 275: Section 2 Complaint of threat to commit crime
Section 2. If complaint is made to any such court or justice that a person has threatened to commit a crime against the person or property of another, such court or justice shall examine the complainant and any witnesses who may be produced, on oath, reduce the complaint to writing and cause it to be subscribed by the complainant.

It appears from above that the court has to examine the complainant before proceeding. That is why Threats are not arrestable in a domestic situation where the other well known charges are.

 

[K9Vinny]

...and the end result will be the same: case dismissed lack of cooperating witness. Has anyone out there gotten a conviction for domestic A&B? All of mine, except one (husband was the complainant battered by the wife), was dismissed as the loved one always took the batterer back.

 

[MVS]

Yeah, its a vicious cycle. The victims are always too scared to follow through or they always believe "He really loves me", "It was my fault, I mad him mad, I did something wrong".

The "It's my fault.." bit always pisses me off the most. Anyone here who is married has had arguments with their significant other, but I would never give my wife a beating because she made me mad. Batterers are cowards.

And if you've been married long enough, you know that "Yes Dear" is a common response. :lol:

 

[bluesamurai22]

...and the end result will be the same: case dismissed lack of cooperating witness. Has anyone out there gotten a conviction for domestic A&B? ...

Yes

Couple was grappling in the street. This was witnessed by a guy who we eventually hired as an officer. I noted that the phone appeared to have been pulled from the wall some time before we arrived. The drunken and abused girlfriend took a cab up to the station to try to bail the loser out. No bail and the guy was held for a while on a dangerousness hearing. He was eventually sent away for at least a year (I think).

It's going to be harder to get convictions with some of the new USSC and SJC decisions regarding excited utterences.

 

[2-Delta]

If the friend of Betty was an actual witness (good old 2 prong test) then I'd say that's good enough to meet PC standards.